Thomas Hoppner, Felicitas Schaper, and Philipp Westerhoff ‘Google Search (Shopping) as a Precedent for Disintermediation in Other Sectors – The Example of Google for Jobs’ (2018) Journal of European Competition Law & Practice 9(10) 627

The Google Shopping decision was said by the Commission to be “a precedent which establishes the framework for the assessment of the legality of this type of conduct”, i.e. the use of a dominant platform to favour one’s own ancillary service. Despite this, in 2018 Google launched a new service, Google for Jobs, for the matching of job seekers and employers in Europe.

This article, availablehere, examines whether the manner with which Google is presenting its new Google for Jobs service on its general search results pages complies with the precedent set out by the Google Shopping decision.

The paper is structured as follows:

Sections II and III provide some insights into search and search bias, and reviews the European Commission’s Google Shopping decision.

Upon a user’s query in Google Search, Google’s general search results pages generally produce three different categories of search results: (i) Generic Search Results, (ii) Specialised Search Results and (iii) AdWords Results. The likelihood that a user follows a specific result is determined primarily by the result’s positioning and display.

The Google Shopping decision found that the ten highest-ranking generic search results on the first Google general search results page together generally receive approximately 95% of all clicks on generic search results. Given the significant influence of the positioning and display of services on general search results pages, every general search engine has an economic incentive to present its own services more favourably on general search results pages as compared to competing services. Due to its economic impact on affected markets, search bias becomes a serious competition law concern once the relevant search engine dominates the market or even becomes the de facto standard.

The Commission found that Google had abused its dominant position on European national markets for general search services by favouring its own comparison shopping service, Google Shopping, on its general search results pages. Since, the Commission has clarified that it continues to examine Google’s treatment in its search results of other specialised Google search services, and that the Commission’s decision on comparison-shopping “is a precedent which establishes the framework for the assessment of the legality of this type of conduct.”

Section IV describes the rollout of Google Jobs.

Google for Jobs matches job seekers with employers by enabling searchers to sort through job listings from a range of various online recruitment services and direct employers. The competition law concerns arise from the fact that, when a user enters a job search query on Google Search, Google displays job offerings on its search results’ page in a space that is dedicated solely to job offerings gathered and compiled by Google for Jobs – similarly to the placement of products in Google Shopping.

The prominent position and display of the results increase the likelihood that searchers will click on the job postings provided by Google for Jobs. If they do, users do not have to leave Google’s websites at any step of their job search and job selection itinerary. Only the last step of this “candidate journey,” the actual application, is not (yet) fully included in Google for Jobs. Instead, users are redirected to the pages which originally host the respective job posting (e.g. Glassdoor or LinkedIn). Overall, its entire set-up suggests that Google for Jobs is not intended to direct users to the most relevant job search sites; rather, it is intended to accompany the entire job search experience and to provide the relevant job posting itself.

Section V pursues a competition assessment of Google jobs.

Based on the precedent set by Google Shopping, Google’s conduct will amount to an abuse of dominance if the following conditions are met: (i) Google is dominant in the markets for general search services; (ii) Google for Jobs provides a service on a separate but related market to Google search; (iii) Google favours this own service as compared to competing services on the related market; and (iv) this favouring is capable of foreclosing competition on this related market. Looking at each in turn:

Dominance in market for general search services – In Google Shopping, the Commission found that Google holds a dominant position in each national market for general search services as provided by Google’s flagship service, Google Search. This is still the case.

Google for Jobs operates on the separate market for online recruitment services – Online recruitment services are not interchangeable with, and do not act as a substitute for general search services. Instead, online recruitment services and general search services act as complements rather than substitutes. Google for Jobs neatly fits within the definition of an online recruitment service: (i) it allows users to search for jobs every time a user types in a job-related search query; (ii) it provides users with several filtering options; (iii) Google for Jobs itself provides all relevant information relating to a job opportunity (including, in some instances, salary information and employer reviews); and (iv) it provides the option to apply for jobs through links to third-party websites.

Google favours its own service – By way of analogy with Google Shopping, Google must have favourably positioned and displayed a “part” or “all” of Google for Jobs in its general search results pages as compared to competing online recruitment services for there to be an abuse. This is clearly the case. Firstly, Google positions Google for Jobs more favourably than results from competing online recruitment services. Secondly, Google displays Job Results from Google for Jobs with graphical features that are more attractive than those granted to any other online recruitment service.

Google’s practice is capable of foreclosing the market for online recruitment services – Google Shopping does not replace the need for a case-specific analysis to account for the specific characteristics of the market under investigation. This applies, in particular, to the question as to whether Google for Jobs is capable of foreclosing competition on the adjacent market in which it operates. In the case of online recruitment services, the authors’ analysis suggests that the self-favouring of Google for Jobs on Google’s general results pages is designed to foreclose competition in the medium term to long term, and is capable of having such effects without generating any counterbalancing efficiency gains.

Comment:

As seen in the article above, it is still unclear exactly what was the theory of harm that the Commission adopted in Google Shopping. The authors of this piece – comprising two partners at an antitrust plaintiff’s firm and a judge from Berlin – clearly take the decision at face value as prohibiting self-favouring discrimination which can plausibly foreclose competition in the future. Moreover, it seems the European Commission also shares their view, as it is currently looking at Google initiatives related to jobs and local search.

Given platform’s business models and the economic interests at stake, I expect to see this theory being tested in court regarding a multiplicity of services until either the European courts clarify the scope of the Google Search decision or some type of regulation of platform behaviour is introduced.